Mushtoorappa and Another vs Hanumanthappa and Another

Chandrasekhara Aiyar, J.—In suits brought for damages for malicious prosecution of the plaintiffs on a charge of dacoity, both the lower

Courts have found that the prosecution was actuated by malice and was without reasonable and probable cause. They have gone further and held

that the appellants falsely implicated the plaintiffs because they happened to belong to the opposite faction, and without any basis whatever for

thinking that they were really guilty of the offence of dacoity with which they were charged.

I should have thought that the appellants were concluded by these concurrent findings, inasmuch as they are findings of fact. But Mr. Ch.

Raghava Rao was able to cite the decision of Wadsworth, J., in Narayana Mudali and Another Vs. Peria Kalathi Mudali and Another, as authority

for the position that the question whether there was malice or absence of reasonable and probable cause on facts found by the lower Courts is a

question of law that can be gone into in second appeal. This decision is however contrary to the views taken by two Benches of this Court in

Vydinadier v. Krishnaswami Iyer (1911) 24 M.L.J. 515 : ILR 36 Mad. 375 and Chenna Reddi v. Venkataswami (1919) 10 L.W. 314. In the

latter case attention is drawn and reliance is placed upon the observations of the Privy Council in Pestonji M. Moody v. The Queen Insurance

Company (1900) 10 M.L.J. 300 : ILR 25 Bom. 332 (P.C.) and dissent is expressed from the view taken by Mookerjee, J., in Shama Bibee v.

Chairman of Baranagore Municipality (1910) 12 C.L.J. 410 which is the same as the view taken by Wadsworth, J. The Bench rulings arc binding

upon me, especially as they are supported by the pronouncement of the Privy Council.

Even if it was open to me in second appeal to consider whether the facts found by the lower Courts justified the inference they drew about the

existence of malice and the absence of reasonable and probable cause, I see no grounds for reaching a different conclusion. It has been amply

established that the case laid against the plaintiffs was false and that they were deliberately implicated in the occurrence when they were innocent.

The ground urged for the appellants that they would not have started the prosecution but for one of the plaintiffs filing against them a complaint u/s

211 of the Indian Penal Code after a settlement reached before the police as the result of which the original complaint was referred as of a civil

nature, makes the position really worse for the defendants as the malice behind the prosecution becomes definite and clear beyond any doubt when

once it is conceded that the motive which prompted the prosecution was not the laudable one of bringing an offender to justice but of retaliating

against him because of an attack made by him.

It is true that the plaintiffs were committed to the sessions on the charge of dacoity and that in the Sessions Court two of the jurors took the view

that they were guilty, but these facts cannot serve to neutralize the findings reached by the lower Courts. They are circumstances to be borne in

mind in scanning the evidence in the suits for damages for malicious prosecution; and both the lower Courts have had them in mind.

The second appeals fail and are dismissed with costs.

No leave.